In most cases, the down payment is a small part of the cash benefit to be met by the obligated party. It is often 10% of the total amount. The amount of the deposit may, however, be shaped differently by the parties to the contract. The Supreme Court decided that it could constitute even more than half of the main benefit.
The Supreme Court considered the possibility of reserving such a high down payment in the judgment of 31 May 2019. In the cited case (IV CSK 163/18) the plaintiff paid 110,000 thousand. PLN down payment, while the entire property she wanted to buy cost PLN 188,000 zł. The parties agreed that in the event of non-performance of the contract by the buyer, the seller is entitled to retain the down payment of PLN 110,000, while in the event of the non-performance of the contract by the seller, the buyer may demand from it a sum representing twice the down payment, i.e. PLN 220,000. The contract was ultimately not the fault of the buyer, so it lost a high down payment.
Pursuant to art. 394 § 1 of the Civil Code, the down payment given at the conclusion of the contract means that if the contract is not performed by one of the parties, the other party may, without setting an additional deadline, withdraw from the contract and keep the down payment, and if it has given it, it may request the sum twice higher. This situation takes effect in the absence of a different custom or reservation in the contract. The purpose of the deposit is considered to be to strengthen the bond of commitment between the parties. It is to perform a mobilizing, disciplinary and protective function.
The Supreme Court emphasized that a high amount of deposit does not change its legal nature and the effects it produces. It is up to the parties to determine the amount of the deposit, even if its relation to the whole amount is significant.
In the case under consideration, the down payment set by the parties and paid by the claimant exceeded half of the agreed price of the flat. According to the Supreme Court, this did not conflict with the rules limiting the freedom of contracting or the essence of a down payment.
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